3.1 Johnson v. M'Intosh (1823)

Johnson v. M'Intosh (1823) was a landmark case that shaped Native American land rights. It ruled that Native Americans had a right to occupy their lands, but not full ownership. This decision gave the U.S. government exclusive power to acquire Native American territories.

The case is part of the Marshall Trilogy, which established key principles of federal Indian law. These rulings defined tribal sovereignty and the relationship between Native American tribes and the U.S. government, setting the stage for future policies and legal decisions.

Doctrine of Discovery and European Title

Colonial Era Legal Principles and the Doctrine of Discovery

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• The Doctrine of Discovery was a legal principle that granted European nations the right to claim lands they "discovered" and occupy them
• This doctrine was used to justify European colonization of the Americas and other parts of the world during the Age of Exploration
• It was based on the idea that European Christians had a divine right to claim "discovered" lands and convert the indigenous inhabitants to Christianity
• The Doctrine of Discovery was first articulated by Pope Nicholas V in the 1455 papal bull Romanus Pontifex, which granted Portugal the right to claim and conquer lands in West Africa

European Title and the Right of Preemption

• European nations claimed title to the lands they "discovered" under the Doctrine of Discovery
• This title gave them the exclusive right to acquire land from the indigenous inhabitants, a concept known as the right of preemption
• The right of preemption meant that Native Americans could only sell their land to the European nation that held title to it, not to any other European nation or private individual
• This principle was adopted into early American law and was used to justify the acquisition of Native American lands by the U.S. government (Treaty of Fort Stanwix, 1784)

Native American Land Rights

Aboriginal Title and Native American Property Rights

• Native Americans were recognized as having a form of land ownership called aboriginal title, which was based on their traditional use and occupancy of the land
• Aboriginal title was not considered to be a full property right under European legal systems, but rather a right of occupancy that could be extinguished by the European sovereign
• Native American property rights were often viewed as communal rather than individual, with land being held by the tribe as a whole rather than by individual members

The Doctrine of Discovery's Impact on Native American Land Rights

• The Doctrine of Discovery and the right of preemption limited Native American land rights and gave European nations and later the U.S. government the power to acquire Native American lands
• Native Americans were not able to sell their land to private individuals or other nations without the consent of the U.S. government
• The U.S. government used treaties to acquire Native American lands, often under duress or through deception (Treaty of Greenville, 1795)
• As the U.S. expanded westward in the 19th century, Native American land rights were increasingly eroded through forced removal (Trail of Tears) and the creation of reservations

Tribal Sovereignty and Federal Indian Law

The Marshall Trilogy and Tribal Sovereignty

• The Marshall Trilogy refers to three Supreme Court cases decided by Chief Justice John Marshall in the early 19th century that established key principles of federal Indian law and tribal sovereignty
• In Johnson v. M'Intosh (1823), Marshall ruled that Native Americans had a right of occupancy to their lands but not full ownership, and that the U.S. government had the exclusive right to acquire Native American lands
• In Cherokee Nation v. Georgia (1831), Marshall described Native American tribes as "domestic dependent nations" with a relationship to the U.S. government resembling that of a "ward to its guardian"
• In Worcester v. Georgia (1832), Marshall affirmed tribal sovereignty and held that states had no authority over Native American tribes within their borders

The Development of Federal Indian Law

• The Marshall Trilogy established the foundation for federal Indian law, which governs the relationship between the U.S. government and Native American tribes
• Federal Indian law recognizes tribes as sovereign entities with the power to govern their own affairs, but also subjects them to the ultimate authority of the federal government
• The U.S. government has used its power over Native American affairs to regulate trade, establish reservations, and implement policies such as allotment (Dawes Act, 1887) and termination (House Concurrent Resolution 108, 1953)
• The trust relationship between the U.S. government and Native American tribes obligates the federal government to protect tribal lands, resources, and welfare, but has also been used to justify paternalistic policies and federal control over Native American affairs